Managing Ethical Challenges in Managing Ethical Challenges in Clinical Work with Children and Clinical Work with Children and

FamiliesFamilies

Managing Ethical Challenges in Managing Ethical Challenges in Clinical Work with Children and Clinical Work with Children and

FamiliesFamiliesGerald P. Koocher, PhDGerald P. Koocher, PhDApril 26, 2013April 26, 2013

www.ethicsresearch.com

2

Psychological work with families differs significantly from work with individuals in many respects that have important ethical implications.

3

Families often include…

• People with non-congruent, competing, or conflicting interests.

• People who wish to keep secrets from each other.

• People who do not wish to be totally candid with each other.

• People with differing levels of decisional capacity and dependence.

4

People with non-congruent, competing, or conflicting interests.

It may surprise you to know that, contrary to your experience, you’re actually very happily married.

5

People who

want to keep

secrets from each

other.

6

People who do not wish to be totally candid with each other.

• Do I look fat in this?

• Aren’t my parent’s wonderful?

• I’m right, aren’t I? “Is this a good time to have a

big fight?”

Understanding the Legal Status of Parents and Children

Grasping the fundamentals and classic court cases provides a guide to ethical practice by:•Understanding parental rights•Understand protections afforded to children•Obeying the law.

Parent’s right of control:Pierce v. Society of Sisters (1925)

• On 7 November 1922, the voters of Oregon passed a referendum, the Compulsory Education Act. The referendum was primarily aimed at eliminating parochial schools, including Catholic schools. Many Protestants felt that religious schools prevented assimilation

• Private schools such as those run by the Society of Sisters of the Holy Names of Jesus and Mary were concerned about the right of parents to send their children to such schools as they saw fit, including religious schools.

Meyer v. Nebraska (1923)

• Robert T. Meyer, the Plaintiff, was tried and convicted in the district court for Hamilton county, Nebraska, under an information which charged that on May 25, 1920, while an instructor in Zion Parochial School he unlawfully taught the subject of reading in the German language to Raymond Parpart, a child of 10 years, who had not attained and successfully passed the eighth grade.

Limits on Parental Control:Prince v. Massachusetts (1944)

• Sarah Prince, aunt and custodian of Betty M. Simmons, age nine had:– (1) refused to disclose Betty's identity and age

to a public officer whose duty was to enforce the statutes;

– (2) furnished Betty with magazines, knowing she was to sell them unlawfully, that is, on the street; and

– (3) as Betty's custodian, permitted her to work contrary to law.

• All plaintiffs were members of the Jehovah's Witness faith and both Mrs. Prince and Betty testified they were ordained ministers.

Mr. Justice Rutledge delivered the opinion

of the Court’s 5-4 majority

• “Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.”

In re: Gault

• The Supreme Court decision which established that under the Fourteenth Amendment, juveniles accused of crimes in a delinquency proceeding must be accorded many of the same due process rights as adults such as the right to timely notification of charges, the right to confront witnesses, the right against self-incrimination, and the right to counsel.

Mr. Justice Fortas delivered the opinion

of the Court’s 8-1 majority

• Under our Constitution, the condition of being a boy does not justify a kangaroo court.

Tinker v. Des Moines Independent Community School District (1969)

• In December, 1965, Des Moines, Iowa residents John Tinker (age 15) and Mary Beth Tinker (age 13) and their friend Christopher Eckhardt (age 16) decided to wear black armbands to their schools (high school for John and Christopher, junior high for Mary Beth) in protest of the Vietnam War. They were suspended.

Mr. Justice Fortas delivered the opinion

of the Court’s 7-2 majority.

• “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

16

How are Child Clients Different from Adults?

• Legal Status– Minors and Emancipated Minors

• Example: Dominique Moceanu

• Socialization Influences– The case of Ricky Ricardo Green

• Time perspective• Concept manipulation abilities

– Piagetian and other Developmental Frameworks

CHILDREN’S COMPETENCIES

18

What are you asking for when you say, “Is that okay with you?”

• Consent– Competent, Knowing, Voluntary

• Assent– Veto Power– Therapeutic versus non-

therapeutic context• Permission

– Proxy Consent– Substituted Judgment

Let’s clean up the terminology

• “Informed consent” as a tautology– By definition, consent must be an

affirmative, knowing, voluntary act.

• Passive consent as oxymoron– Consent cannot occur via inaction.

• Delancy et al. v. Gateway School District • Gateway settles parents' suit over child

queries;February 13, 2001, Eleanor Chute, Post-Gazette; parents complained their elementary children had been asked personal questions without permission in 1995 settled lawsuit yesterday, includes $225,000 payment

• People participate in studies, subjects do not.

Essential Components of Informed Decision

Making• Information

– Access

• Understanding– Comprehension

• Competency• Voluntariness• Decision Making Ability

– Reasoning Capacity

Children’s Competence to Consent

Ask yourself: Does the child have…

• the ability to understand information offered about the nature and potential consequences of the pending decision?

• the ability to manifest a decision?• the ability to make an appropriate

decision on reasonable bases?

22

Important Case Lawon Decision Making and

Children

• Prince v. Massachusetts, 321 U.S. 158 (1944)

– Parents may not make martyrs of their children

• Parham v. J.R., 442 U.S. 584 (1979)

• Fare v. Michael C., 442 U.S. 707 (1979)

HOW DO THE APA STANDARDS GUIDE US?

24

• Focus on– Competence– Confidentiality– Informed consent– Role clarity– Vigilance, monitoring, and active

management as change occurs or new issues arise

25

Sharing information about children’s psychotherapy with their parents

• Basic concept: therapy has to be safe for all participants and parents need to know info about their children that allows them to fulfill parental responsibilities.

26

Sharing information about children’s psychotherapy with their parents

• Children should have consensual confidentiality rights.

• Parents should have regular progress reports.

• Therapists may breach a child’s confidentiality non-consensually to prevent serious harm, disclosing only info necessary for parents to protect.– Clarify meaning of serious harm to avoid

confusion.

PRACTITIONER COMPETENCE

28

APA Ethics Code Standards on Competence

• Psychologists provide services, teach, and conduct research with populations and in areas only within the boundaries of their competence, based on their education, training, supervised experience, consultation, study, or professional experience.

29

APA 2010 Code Standards on Competence

• Where scientific or professional knowledge in the discipline of psychology establishes that an understanding of factors associated with age, gender, gender identity, race, ethnicity, culture, national origin, religion, sexual orientation, disability, language, or socioeconomic status is essential for effective implementation of their services or research, psychologists have or obtain the training, experience, consultation, or supervision necessary to ensure the competence of their services, or they make appropriate referrals…

30

APA Code Standards on Competence

• Psychologists planning to provide services, teach, or conduct research involving populations, areas, techniques, or technologies new to them undertake relevant education, training, supervised experience, consultation, or study.

31

Confidentiality in Child Therapy

Who is the client?• To whom do you believe you owe a

professional duty?• Who may believe that you owe them a

professional duty?• What have you done to clarify the

nature, extent, and duration of such obligations?

• What documentation have you retained to document any of these points?

To whom do I owe a duty of care and in what hierarchical

sequence?

Society at large?All of the above?

PRIVACY CONFIDENTIALITY AND PRIVILEGE

Privacy, Confidentiality & Privilege Domain Breadth

•Privacy•A constitutional right

•Confidentiality•A professional standard

•Privilege•A narrow legal protection

Excellent confidentiality source:http://jaffee-redmond.org/

Privacy• The Constitutional right of individuals

to choose for themselves whether, when, and how private information will be revealed.

• The word privacy does not appear in the Constitution, but we can infer the concept in:– Amendment 3 – quartering of soldiers in homes– Amendment 4 – search and seizure– Amendment 5 – trial and punishment– Amendment 15 – right to vote regardless of race,

color, or previous servitude

Confidentiality and Privilege

• Confidentiality: The duty imposed on professionals to keep information disclosed in professional relationship in confidence.

• Privilege: The patient’s right to keep confidential communications from being disclosed in a legal proceeding.

• When there are competing social policies Parens patriae doctrine (i.e., the parentalistic state as the guardian or protector of the incompetent)◦Police powers and confinement may

be used to protect (e.g., Joyce Brown, AKA: Billie Boggs v. Mayor Koch, 1987).

◦Legislatures have enacted protective mandates.

Principles underpinning exceptions to privacy protections

• When a patient’s behavior becomes inconsistent with social policies supporting privacy.

No

No

Yes

40

APA’s fundamental statement on confidentiality

• Psychologists have a primary obligation and take reasonable precautions to protect confidential information obtained through or stored in any medium, recognizing that the extent and limits of confidentiality may be regulated by law or established by institutional rules or professional or scientific relationship.

41

Limits on Confidentiality per APA Ethics Code

• Psychologists discuss with persons (including, to the extent feasible, persons who are legally incapable of giving informed consent and their legal representatives) and organizations with whom they establish a scientific or professional relationship – (1) the relevant limits of confidentiality

and– (2) the foreseeable uses of the information

generated through their psychological activities.

42

Mandated abuse or neglect reporting

• 1.03 Conflicts Between Ethics and Organizational Demands – If the demands of an organization with which

psychologists are affiliated or for whom they are working…conflict with this Ethics Code…clarify the nature of the conflict, make known…commitment to the Ethics Code, and take reasonable steps to resolve the conflict consistent with the General Principles and Ethical Standards… Under no circumstances may this standard be used to justify or defend violating human rights…

APA’s position regarding mandated reporting statutes• If psychologists' ethical responsibilities

conflict with law, regulations, or other governing legal authority, psychologists make known their commitment to the Ethics Code and take steps to resolve the conflict. If the conflict is unresolvable via such means, psychologists may adhere to the requirements of the law, regulations, or other governing legal authority.

Mandated reporting variations

• Children• Elders• Dependent

persons– Physically

Disabled– Mentally

Disabled

• Unsafe drivers

Ashburn Psychological Services sued over

toddler's death

• February 19, 2013 - 02:21 pm

• WASHINGTON (AP) - The mother of a 15-month-old boy who died on a court-ordered visit to his father has filed a lawsuit against the psychologist who sanctioned the visitation.

• The child died on the fourth unsupervised visit, and Joaquin Rams, his father, has been charged with murder.

• Hera McLeod of Gaithersburg, Md., filed the $20 million suit Tuesday in Fairfax County against Ashburn Psychological Services and psychologist Margaret Wong Alleging professional negligence resulting in wrongful death.

• McLeod says Wong's report was instrumental in a judge's decision to grant unsupervised visitation of Prince McLeod Rams to his father, Joaquin Rams.

• The child, Prince, died on the fourth unsupervised visit, and Joaquin Rams has been charged with murder. Authorities say he drowned the boy to collect a life insurance policy.

• McLeod says the psychologist ignored clear warning signs that the father was dangerous. The psychology practice declined comment Tuesday.

Ithaca therapist refuses to turn over notes, charged with contempt6:02 PM, Jan 18, 2013   |  

• Dianea Kohl spent more than 25 years as a state-licensed marriage and family therapist without encountering legal troubles. But in 2012, the Ithaca resident faced court battles in two area counties involving what she considers a violation of the sanctity of the therapist-client relationship — a violation she believes could have a chilling effect on other counselors and their clients.

• “There are only two exceptions to confidentiality — only if I have knowledge of child abuse, or if someone is actively suicidal or homicidal can I breech confidentiality,” Kohl said.

• Kohl first ran into trouble early last year when she was called to testify in Steuben County Family Court regarding a child custody case.

• Both the father involved in the dispute and his 3-year-old child had been to court-ordered therapy sessions with Kohl. Christine Valkenburg, the law guardian who represented the child, asked that Kohl provide the case notes from those sessions. Instead, Kohl presented a summary of those notes to the court.

• “The law guardian wanted all of my therapy notes. Why did she want my notes unless she thinks I’m hiding something?” Kohl said. “She could not give a reason why she wanted to see the notes. The law guardian went to the judge, and the judge issued an order. That’s when I got my own lawyer.

• “I refused to give up my notes. My ethics say I am not to do that,” she said. “I take lots of fragmented notes. They would not be helpful to the lawyer.”

• Opposing views• Valkenburg didn’t see it that way, and neither did

Family Court Judge Joseph Latham. Latham signed a contempt-of-court order against Kohl in February, and the next thing Kohl knew, she was under arrest and in handcuffs.

• “I was arrested June 2. There had been a warrant out since February, so I thought they decided not to do anything,” Kohl said. “I was flabbergasted when a state trooper handcuffed me in broad daylight on Route 13. I was shocked.”

• Kohl eventually compromised and gave her notes directly to Latham to review. Kohl had discussed the order with her client and received the judge’s promise that only he would see them and that some text would be redacted.

New York Secure Ammunition and Firearms Enforcement Act of 2013 (NY SAFE ACT)• Mental health professionals will be required to

report to local mental health officials when there is reason to believe a patient is likely to engage in conduct that will cause serious harm to themselves or others. This information will then be crosschecked against the new comprehensive, and regularly updated, gun registration database. If the patient possesses a gun, the license will be suspended and law enforcement will be authorized to remove the person's firearm.

•  

• 9.46 of the Mental Hygiene Law will require mental health professionals, in the exercise of reasonable professional judgment, to report if an individual they are treating is likely to engage in conduct that will cause serious harm to him- or herself or others. A good faith decision about whether to report will not be a basis for any criminal or civil liability. When a Section 9.46 report is made, the Division of Criminal Justice Services will determine whether the person possesses a firearms license and, if so,will notify the appropriate local licensing official, who must suspend the license. The person's firearms will then be removed.

52

Consent to Services Discussion Topics• Provide the same basic

information given to individual clients

• Confidentiality limits• Access to records• Normal conflicts of interests in

multiple client therapies• Children’s rights and

limitations in these situations

53

What principles apply to informed consent to treatment?

• Inform clients as early as feasible in the therapeutic relationship about the nature and anticipated course of therapy, fees, involvement of third parties, and limits of confidentiality.

• Provide sufficient opportunity for the client to ask questions and receive answers.

54

APA Code Comments on Consent

• For persons who are legally incapable of giving informed consent, psychologists nevertheless– (1) provide an appropriate explanation, – (2) seek the individual's assent, – (3) consider such persons' preferences

and best interests, and – (4) obtain appropriate permission from a

legally authorized person, if such substitute consent is permitted or required by law. When consent by a legally authorized person is not permitted or required by law…take reasonable steps to protect the individual’s rights and welfare.

55

APA Code Comments on Informed Consent

• When psychological services are court ordered or otherwise mandated, psychologists inform the individual of the nature of the anticipated services, including whether the services are court ordered or mandated and any limits of confidentiality, before proceeding.

• Psychologists appropriately document written or oral consent, permission, and assent.

56

How about informed consent other than treatment?• Psychologists may dispense with

informed consent only – (1) where research would not reasonably be

assumed to create distress or harm and involves

• (a) the study of normal educational practices, curricula, or classroom management methods conducted in educational settings;

• (b) only anonymous questionnaires, naturalistic observations, or archival research for which disclosure of responses would not place participants at risk of criminal or civil liability or damage their financial standing, employability, or reputation, and confidentiality is protected;

57

Working with Families and Children

Consent Discussion Topics

• Basic information given individual clients.

• Confidentiality limits• Access to records• Normal conflicts of

interests in multiple client therapies

• Children’s rights and limitations on these

• Rules for disclosure of info across family

• Reminder that no one can predict the course of or changes in human relationships

• HIPAA rules

58

Who Can Consent to Treatment

for a Minor Child?

• The Child – Confirm applicability of state laws.

• The Parents– Joint custody means either parent may

consent unless court decrees state otherwise.

– With joint custody either parent can demand an end to therapy of minor child.

– Resisting parental demand could result in disciplinary action.

59

Who Can Consent to Treatment of Minor Child?

• When legal/physical custody is divided:– Seek consent from both parents prior

to evaluating or treating.– Request copy of divorce decree or

letter from parent’s attorney attesting to their authority.

60

Who Can Consent to Treatment of Minor Child?

• When a parent is unavailable or when parental contact might reasonably be expected to harm the child:– Seek consultation.– Note pros and cons of non-contact in

your records.

61

Parental disputes regarding child’s treatment

• Consent to your services does not equal acceptance of payment responsibility.– Clarify this in advance,

preferably in writing, with the party accepting responsibility.

62

Who is the client when a child enters therapy?• Does a psychotherapist-client relationship

exist when a parent participates in services only (or chiefly) to aid the child?– If parent is not considered a client he/she

should be specifically informed before professional activities begin.

– Information provided in such contexts is confidential, but may not be privileged.

– Document the parent’s “client” status in writing

63

Who is the client when a child enters therapy?

• Usual best option: designate parents as clients for limited purposes in your records and inform them.

64

Who’s in the record?• Psychologists create, and to the

extent the records are under their control, maintain, disseminate, store, retain, and dispose of records and data relating to their professional and scientific work… – (1) facilitate provision of services later by

them or other professionals, – (2) allow for replication of research, – (3) meet institutional requirements, – (4) ensure accuracy of billing and

payments, and – (5) ensure compliance with law.

65

Involvement of 3rd Parties

• When you agree to provide services to a person or entity at the request of a third party, attempt to clarify at the outset of the service the nature of the relationship with all individuals or organizations involved. This clarification includes your role (e.g., therapist, consultant, diagnostician, or expert witness), an identification of who is the client, the probable uses of the services provided or the information obtained, and the fact that there may be limits to confidentiality.

66

Multiple Role Relationships

67

Therapy Involving Couples or Families

• When psychologists agree to provide services to several persons who have a relationship (such as spouses, significant others, or parents and children), they take reasonable steps to clarify at the outset – (1) which of the individuals are clients/patients

and – (2) the relationship the psychologist will have

with each person. This clarification includes the psychologist’s role and the probable uses of the services provided or the information obtained.

68

Therapy Involving Couples or Families• If it becomes apparent that

psychologists may be called on to perform potentially conflicting roles (such as family therapist and then witness for one party in divorce proceedings), psychologists take reasonable steps to clarify and modify, or withdraw from, roles appropriately.

69

Remember to discuss…• Rules for disclosure of information

across the family.• Reminder that no one can predict

the course of or changes in human relationships.

70

Isn’t it obvious?• Do not engage in sexual

intimacies with individuals known to be close relatives, guardians, or significant others of current clients/patients.

• Do not terminate therapy to circumvent this standard. “You slept with her, didn’t

you?”

Jury rules in favor of man suing therapist for sparking relationship with his wife during counseling

• Richard Webb’s 25-year marriage was crumbling so he sought counseling from Kevin Ragsdale, PhD from September 2007 to January 2008.

• Over a four-month span of counseling, Webb's wife was brought in to joint counseling sessions.

• Webb didn't know Ragsdale conducted private sessions with his wife and later started a personal relationship with her.

• http://www.tallahassee.com/article/20111229/NEWS/111228015/Jury-rules-favor-man-suing-therapist-sparking-relationship-his-wife-during-counseling?odyssey=tab|topnews|text|frontpage

• Webb sued Ragsdale, who married Webb's wife in January 2010, for emotional damages and a Leon County jury ruled the therapist violated several ethical standards of the American Psychological Association.

• The jury held Ragsdale 65 percent responsible for negligence that caused "harm or loss" to Webb and attributed 35 percent of the negligence to Webb, awarding him $107,220 [filed December 15, 2011 in Leon County (Florida) Circuit Court].

• Webb and his ex-wife had three children ages 14, 18 and 21. Webb reports having “a great deal of difficulty on any kind of parenting issues” now that Ragsdale has married his ex-wife.

73

Multiple Relationships

• A multiple relationship occurs when a psychologist is in a professional role with a person and – (1) at the same time is in another role

with the same person,– (2) at the same time is in a relationship

with a person closely associated with or related to the person with whom the psychologist has the professional relationship, or

– (3) promises to enter into another relationship in the future with the person or a person closely associated with or related to the person.

74

Multiple Relationships

• Refrain from entering into a multiple relationship if that relationship could reasonably be expected to impair your objectivity, competence, or effectiveness in performing your functions as a psychologist, or otherwise risks exploitation or harm to the person with whom the professional relationship exists.

• Multiple relationships that would not reasonably be expected to cause impairment or risk exploitation or harm are not unethical.

75

Multiple Relationships• If you find that, due to unforeseen factors,

a potentially harmful multiple relationship has arisen, take reasonable steps to resolve it with due regard for the best interests of the affected person and maximal compliance with the Ethics Code.

• When required by law, institutional policy, or extraordinary circumstances to serve in more than one role in judicial or administrative proceedings, clarify role expectations and the extent of confidentiality at the outset and thereafter as changes occur.

Custody DisputesCustody DisputesCustody DisputesCustody Disputes

Child Custody Cases: Key Advice

• Don’t treat the system casually!

• Get formal training and mentored experience.

• Seek judicial appointment, if possible.

• Clarify roles and expectations with all parties at the outset.

Common criticisms of psychologists in custody disputes

•Deficiencies and abuses in professional practice.

•Inadequate familiarity with the legal system and applicable legal standards.

•Inappropriate application of assessment techniques.

•Presentation of opinions based on partial or irrelevant data.

•Overreaching by exceeding the limits of psychological knowledge of expert testimony.

•Offering opinions on matters of law.

• Loss of objectivity through inappropriate engagement in the adversary process.

• Failure to recognize the boundaries and parameters of confidentiality in the custody context.

Common criticisms of psychologists in custody

disputes

Can you believe it?That idiot took the kids to see topless dancers at a bar!

• Provide a statement of adult parties’ legal rights with respect to the anticipated assessment – Give a clear statement regarding the

purpose of the evaluation.– Identify the requesting entity.

• (Who asked for the evaluation?)– Describe the nature of anticipated

services. • (What procedures will you follow?)

– Explain the methods to be utilized. • (What instruments and techniques will you

use?)– Specify whether or not the services are

court ordered.

Elements of Notification in a

Custody Evaluation

• Delineate the parameters of confidentiality.– Will anything be confidential from the court,

the parties, or the public?– Who will have access to the data and report?

How will access be provided?

• Provide information regarding:– The evaluator’s credentials;– The responsibilities of evaluator and the

parties;– The potential disposition of data– The evaluator’s fees and related policies;– What information provided to the child, and by

whom?– Any prior relationships between evaluator and

parties;– Any potential examiner biases (For example:

presumptions regarding joint custody).

• Consent documentation– Obtain consent to disclose material learned

during evaluation in litigation.– Obtain waiver of confidentiality from adult

litigants or there legal representatives.– Provide written documentation of consent.

SCHOOL DAZE

84

Psychologists, Kids, and Schools: Special Ethical Concerns

Who is the Client?The School Board?The Principal?The Parents?The Child?Who is most vulnerable?

85

Psychologists, Kids, and Schools: Special Ethical Concerns

• Organizational Demands versus Child Client Needs– Incongruent interests– Autonomy in the context of

organizational structure– Service needs and limited budgets

• Forrest v. Ansbach

Litigating Intelligence

• LARRY P. v. RILES United States Court of Appeals, 1984. 793 F.2d 969 (9th Cir.)

• PASE v. Hannon, 506 F. Supp. 831 (N.D. Ill. 1980).

87

Psychologists, Kids, and Schools: Special Ethical Concerns within the

School

Legitimacy of token economies, rewards, and aversive controls

Use of “time out” Preventive

exclusion Post hoc support

for administrative decisions

Pygmalion effects

High stakes testing

88

Psychologists, Kids, and Schools: Special Ethical Concerns

• Privacy and Confidentiality– What goes into school records– Who has access– “Need to know: paradigm

• Psychologist as “whistle blower” and mandated reporter in absence of administration action

89

Psychologists, Kids, and Schools: Special Ethical Concerns

• School-based research– Merriken v. Cressman: “prediction of

drug and alcohol abuse” in Norristown, PA schools opposed by parent and ACLU

– “Opt-out ConsentConsent” • Delancy et al. v. Gateway School District

– Prediction of school-based violence

Stigma and Labeling

• Designation as “at risk” creates risk

91

Psychologists, Kids, and Schools: Special Ethical Concerns Extending

Home

• Substance abuse• Domestic

violence• Academic

dishonesty• Disciplinary

actions:– Detention– Suspension– Expulsion

• Attendance• Misuse of “high

stakes” testing• Harassment and

bullying (school violence)

• Social needs• IEP appeals